The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge, District

MEMORANDUM

Defendant has filed a Motion to Dismiss or Transfer based on lack of
personal jurisdiction and improper venue.*fn1 Because no substantial
part of the events or omissions giving rise to Plaintiffs' claims for
breach of contract, conversion, or due process occurred in this judicial
district, Defendant's challenge to venue will be sustained. Accordingly,
Defendant's Motion will be granted, and, in the interests of justice,
this action will be transferred to the Eastern District of Missouri.
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I. Background

Plaintiffs in this case are the Lackawanna Chapter of the Railway &
Locomotive Historical Society, Inc. (a Pennsylvania not-for-profit
corporation with its principal place of business in Pennsylvania), and
the Friends of the New Jersey Railroad and Transportation Museum
Commission, Inc. (a New Jersey not-for-profit corporation with its
principal place of business in New Jersey). (Am. Compl. ¶¶ 1, 2.)
Defendant St. Louis County, Missouri (organized under the laws of the
state of Missouri) operates the Museum of Transportation in St. Louis,
Missouri, (Id. ¶ 3.) Plaintiffs allege that they are the
owners of Locomotive No. 952, which is currently located in St. Louis at
the Museum of Transportation, and that Defendant has refused Plaintiffs'
request to return the Locomotive. Plaintiffs claim ownership of the
Locomotive and a right to demand its return based on their position as
successors in interest to a 1953 Loan Agreement that allegedly conveyed
the Locomotive to St. Louis on an "indefinite loan" basis without
transferring ownership.

The Amended Complaint includes Counts for breach of the 1953 Loan
Agreement (Count I), conversion (Count II), and deprivation of rights to
substantive and procedural due process pursuant to 42 U.S.C. § 1983
(Count III). Jurisdiction is asserted on the basis of "diversity of
citizenship and the existence of a substantial federal question."
(Id. ¶ 4.) Plaintiffs seek specific performance of the 1953
Loan Agreement, requiring Defendant to return Locomotive No. 952 to
Plaintiffs; an order of replevin, requiring Defendant to deliver
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the Locomotive to Plaintiffs; and an award of damages for the
wrongful detention of the Locomotive.

Regarding the history of Locomotive No. 952, the Amended Complaint
alleges that the American Locomotive Company, of Schenectady, New York,
manufactured the Locomotive for the Delaware, Lackawanna & Western
Railroad Company (Lackawanna Railroad) around 1905. (Id. ¶
5.) The Lackawanna Railroad utilized Locomotive No. 952 in active service
from 1905 to 1938. (Id. ¶ 9.) In 1938, officers of the
Lackawanna Railroad retired the Locomotive from active service.
(Id. ¶ 10.) In an agreement dated April 17, 1939, the
Lackawanna Railroad transferred ownership of the Locomotive to the
Railway and Locomotive Historical Society, Inc. (R&LHS), a
Massachusetts corporation, subject to certain conditions. One such
condition was that the Locomotive was to be used by the R&LHS only
for the purposes of exhibition or as a museum piece, and the purpose of
the transaction was "to preserve the said locomotive as an object of
historical and scientific interest." (Id. ¶ 11.)

In 1952, John Roberts, the owner of a private railroad museum in St.
Louis, Missouri, known as the St. Louis Museum of Transport, requested
that the Locomotive be placed on display at his museum. (Id.
¶ 14.) In April of 1953, with the consent of the Lackawanna Railroad,
John Roberts and the R&LHS agreed that the Locomotive would be placed
on display in St. Louis on an "indefinite loan" basis, but with ownership
being retained by the
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R&LHS. (Id. ¶ 15.) Around 1979, John Roberts
experienced financial difficulties and "transferred his entire museum
collection by lease to The St. Louis County Department of Parks and
Recreation. The County exercised its option to acquire the museum as a
gift in February, 1984. The Museum is presently operated at Barrett
Station Road, St. Louis, Missouri." (Id. ¶ 16.)

In 1993 and 1994, officers of the R&LHS visited the site of
Locomotive No. 952 and expressed concern about its condition. It had been
"moved to an unused railroad track at the Museum where it began to decay
and was surrounded by weeds and debris." (Id. ¶ 17.) On May
30, 1996, the Board of Directors of the R&LHS adopted a resolution
providing for transfer of its ownership of the Locomotive to any
responsible organization "that would protect the locomotive against
further deterioration, restore and conserve it for future display, and
return the locomotive to the service territory of the Lackawanna Railroad
with the expectation and intent that the locomotive would be placed on
display in Scranton, Pennsylvania." (Id. ¶ 18.) In 1999,
the Board of Directors of the R&LHS approved the execution of a gift
deed that transferred all right, title, and interest to the Locomotive to
Plaintiffs. (Id. ¶ 20.) On January 4, 2002, Defendant
refused a request to return the Locomotive to Plaintiffs. (Id.
¶ 22.) This action was commenced on June 10, 2002.
Page 5

II. Discussion

Plaintiffs assert venue in the Middle District of Pennsylvania pursuant
to 28 U.S.C. § 1391 (b)(2), which provides:

A civil action wherein jurisdiction is not founded
solely on diversity of citizenship may, except as
otherwise provided by law, be brought . . .
in . . . a judicial district in which a
substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part
of property that is the subject of the action is
situated. . . .

In the present case, the property that is the subject of this
action, i.e., Locomotive No. 952, currently is located in St. Louis,
Missouri. Therefore, consideration of the venue issue focuses on whether
substantial events or omissions giving rise to the claims occurred in the
Middle District of Pennsylvania.

In a case with multiple claims, venue must be proper for each claim.
See Lomanno v. Black, 285 F. Supp.2d 637, 641 (E.D. Pa. 2003);
Am. Trade Servs., Inc. v. Tele-E-Star Communication, Inc., No.
Civ. A. 98-CV-2636, 1998 WL 964203, at *2 (E.D. Pa. Nov. 25, 1998);
Jones v. Trump, 919 F. Supp. 583, 587 (D. Conn. 1996);
Phila. Musical Soc'y, Local 77 v. Am. Fed'n of Musicians of the
United States and Canada, 812 F. Supp. 509, 517 (E.D. Pa. 1992). In
this case, Defendant has carried its burden of showing that substantial
events or omissions did not occur in the Middle District of Pennsylvania
with respect to any of the claims advanced by Plaintiffs.

A. Breach of Contract Claim

Courts in the Third Circuit have found that "[i]n breach of contract
actions, venue ordinarily will lie where the contract was to be
performed." Waste Mgmt. of Pa., Inc. v. Pollution Control Financing
Auth. of Camden County, No. Civ. A. 96-1683, 1997 WL 22575, at *1
(E.D. Pa. Jan. 21, 1997). See also Harrison v. L.P. Rock Corp.,
No. Civ. A. 99-CV-5886, 2000 WL 19257, at *3 (E.D. Pa. Jan. 7, 2000);
Direct Response Media, Inc. v. Resort Connection & Travel
Corp., No. 96-1683, 1997 WL 14479, at*1 (E.D. Pa. Jan. 15, 1997). In
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the present case, the place of performance is St. Louis because the
1953 Loan Agreement between John Roberts and the R&LHS allegedly
provided that the Locomotive would be placed on display in St. Louis.
Officers of the R&LHS expressed concern in 1993 and 1994 regarding
the Locomotive's condition while it was in St. Louis. Defendant, a
citizen of Missouri, refused to return the Locomotive on January 4, 2002.

A substantial part of relevant events or omissions did not occur in
Pennsylvania. There is no evidence that when the contract was formed the
Locomotive was in Pennsylvania or that there was then an expectation of
its return to Pennsylvania. As noted above, the Locomotive was owned by a
Massachusetts corporation. In fact, the Lackawanna Chapter of the Railway
& Locomotive Historical Society, Inc., the only party with
Pennsylvania citizenship in this case, did not even exist when the 1953
Loan Agreement was made. There is neither allegation nor evidence that
the 1953 Loan Agreement itself either was somehow connected to
Pennsylvania or expressed any intention eventually to return the
Locomotive to Scranton, Pennsylvania. Indeed, the exact provisions of
this Loan Agreement, upon which Plaintiffs so heavily rely, are not clear
because it has not been produced. That ownership of the Locomotive was
transferred in 1999 (nearly a half-century after the 1953 Loan Agreement)
to, inter alia, a Pennsylvania citizen "with the expectation and
intent that the locomotive would be placed on display in Scranton,
Pennsylvania" (Am. Compl. ¶ 18) fails to constitute a "substantial"
event for the purposes of
Page 8
breach of contract claims. St. Louis had no involvement with this
contract on which Plaintiffs' case rests. This case centers on the Loan
Agreement between a Missouri resident and a Massachusetts corporation.
Plaintiffs cannot create in Pennsylvania the events giving rise to this
case by virtue of their succession to ownership of the Locomotive.

A determination of proper venue "must be guided by the `nature of the
suit' not by the underlying historical facts which simply provide this
Court with a frame of reference as to how this case evolved." Grey
v. State of New Jersey, No. Civ. A. 01-1561, 2001 WL 34355649, at *4
(E.D. Pa. Dec. 26, 2001) (citing Cottman Transmission Svs., Inc. v.
Martino, 36 F.3d 291, 295 (3d Cir. 1994)). "Events or omissions that
might only have some tangential connection with the dispute in litigation
are not enough. Substantiality is intended to preserve the element of
fairness so that a defendant is not haled into a remote district having
no real relationship to the dispute." Cottman, 36 F.3d at 294.

In Cottman, the defendants were Leonardo Martino, a Michigan
resident, and Trans One II, Inc., a Michigan corporation, and the
plaintiff was Cottman Transmission Systems, Inc., a Pennsylvania
corporation. Martino had entered into a franchise agreement with A-1
Transmissions, Inc., a Michigan corporation, and A-1 later assigned its
franchises to Cottman. Pursuant to the assignment, Martino and Trans One
executed a franchise agreement with Cottman, but Cottman asserted an
ability to enforce the original A-1 agreement if necessary. Cottman
eventually became dissatisfied with Martino's
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performance, especially due to inaccurate reporting of sales and
delinquent license fee payments, and filed suit against the defendants in
the Eastern District of Pennsylvania for, inter alia, breach of
the A-1 franchise agreement. Cottman argued that substantial acts and
omissions gave rise to its cause of action in the Eastern District of
Pennsylvania, including Martino's failure to pay license fees to Cottman
in Pennsylvania and Martino's failure to return advertising items to
Cottman in Pennsylvania. The Third Circuit held that "[t]he omissions
that Cottman cite[d]  Martino's failure to return various
materials and failure to remit payments  actually occurred in
Michigan, not in Pennsylvania. Even though the result was Cottman's
non-receipt of those items in Pennsylvania, the omissions bringing about
this result actually occurred in Michigan." 36 F.3d at 295. Accordingly,
the court held that these omissions failed to "give rise" to Cottman's
claims in Pennsylvania, Id.

Applying the holding in Cottman to this case, the alleged
breach of contract  the failure to return the Locomotive 
occurred not in Pennsylvania, but in Missouri. The holding in
Cottman compels the decision in this case. In sum, it simply
cannot be said that a substantial part of the events or omissions giving
rise to the breach of contract claim occurred in the Middle District of
Pennsylvania.

B. Conversion Claim

The basis for the conversion claim is Defendant's refusal to return
Locomotive No. 952 to Plaintiffs. (Am. Compl. ¶ 29.) Plaintiffs argue
that "the event giving rise to Plaintiffs'
Page 10
claim is the refusal by Defendant to return Locomotive No. 952 to
its rightful owners in Scranton, Pennsylvania. This refusal is not just a
`substantial part' of events giving rise to the claim, it is the event
underlying Plaintiffs' claim." (Pls.' Br. in Resp. to Def.'s Mot. to
Dismiss or Transfer at 10 (emphasis omitted).) The Third Circuit,
however, as discussed above, has held that an out-of-state defendant's
failure to return items to an in-state plaintiff constitutes an omission
that occurs where the defendant is located, not where the plaintiff is
located. Cottman, 36 F.3d at 295. Thus, Defendant's refusal is
insufficient to constitute a substantial omission that occurred in
Pennsylvania.

C. Due Process Claims

Plaintiffs claim that Defendant's refusal to return the Locomotive
constitutes a deprivation of Plaintiffs' rights to substantive and
procedural due process pursuant to 42 U.S.C. § 1983. For the
procedural due process claim, they argue that "Defendant, upon learning
that Plaintiff sought the return of its locomotive, should have provided
Plaintiff with notice and a hearing before flatly refusing to return the
locomotive." (Pls.' Br. in Resp. to Def.'s Mot. to Dismiss or Transfer at
16.) In determining venue, "it is appropriate to look where the Plaintiff
was allegedly denied his due process rights which gave rise to his
claim." Egervarvy v. Young, No. Civ. A. 96-3039, 1997 WL 9787,
at *5 (E.D. Pa. Jan. 7, 1997). In the present case, the alleged failure
to provide notice and a hearing occurred in Missouri. Similarly, the
substantive due process claim is based on Defendant's actions in
retaining the
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Locomotive in Missouri. There is no substantial event or omission
that occurred in Pennsylvania for either the procedural or substantive
due process claims.

III. Conclusion

Defendant's Motion to Dismiss or Transfer for improper venue will be
granted. Cottman compels the conclusion that no substantial
part of the events or omissions giving rise to Plaintiffs' claims for
breach of contract, conversion, or denial of due process occurred in this
judicial district. Notwithstanding the current strong local interest in
this matter, it would be inappropriate to recognize venue here in light
of Cottman. Retention of this case could result in wasted
litigation efforts on he part of all concerned, the parties and this
Court. In fact, the Third Circuit in Cottman found that venue
was improper after judgment had been entered in favor of the
plaintiff in the Eastern District of Pennsylvania, vacated the judgment,
and transferred the case to the Eastern District of Michigan, which is
where it found that venue was proper.

Where, as here, venue is improper, a district court may, in the
interest of justice, transfer the case to any district in which the case
could have been brought. See 28 U.S.C. § 1406(a). There is
no dispute that this action could have been brought in the Eastern
District of Missouri. At the oral argument conducted in this matter,
counsel for Plaintiffs indicated that Plaintiffs would prefer a transfer
to outright dismissal. Thus, in the interest of justice, this case will
be transferred to the Eastern District of Missouri. An appropriate Order
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follows.

ORDER

NOW, THIS 12th DAY OF MARCH, 2004, for the reasons set forth
in the foregoing Memorandum, IT IS HEREBY ORDERED THAT:

2. The Clerk of Court is directed to transfer this action to the United
States District Court for the Eastern District of Missouri.

3. The Clerk of Court is directed to mark this matter CLOSED.

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